What to Do When the OIG Comes to Your Office

The Office of Inspector General for Health and Human Services released its Fiscal Year 2013Work Plan on Oct. 2, 2012. Chiropractic is listed in this year's plan just as we were listed in last year's.

The work plan states: "Chiropractors – Part B Payments for Noncovered Services. We will review Medicare Part B payments for chiropractic services to determine whether such payments were in accordance with Medicare requirements. Prior OIG work identified inappropriate payments for chiropractic services furnished during calendar year (CY) 2006. Medicare-covered chiropractic services include only treatment by means of manual manipulation of the spine to correct subluxations. (42 CFR § 440.60.) Chiropractic maintenance therapy is not considered to be medically reasonable or necessary and is therefore not payable. (CMS's Medicare Benefit Policy Manual, Pub. 100-02, ch. 15, § 30.5B.) Medicare will not pay for items or services that are ‘not reasonable and necessary.' (Social Security Act, § 1862(a)(1)(A).) (OAS; W-00-12-35606; W-00-13-35606; various reviews; expected issue date: FY 2013; work in progress and new start.)"

The OIG has oversight authority for everything related to the Department of Health and Human Services. It can audit or review everyone from CMS itself to state programs to you, the individual doctor. When you enroll in Medicare, you agree to oversight by the OIG. This means that it has the right to enter your office and review any records it sees fit to review.

The OIG does not need a warrant, nor does it need patient permission as per HIPAA. It can review records going back to the day you opened your office if it has a reasonable suspicion of fraud.

For routine matters such as these reviews, the OIG auditors will usually call you a week in advance and tell you when they will be in your office, what they are looking for and whether they want an entrance conference, an exit conference or both. If there is a strong suspicion of fraud, they can just show up and start going through your files. The latter scenario usually is reserved for criminal investigations.

OIG Reviews of Chiropractic Offices Will Continue

The OIG recently started reviewing a random selection of chiropractic offices across the country. This action is part of its Fiscal Year 2012 Work Plan. Based on the fact that we are now listed in the 2013 Work Plan, these reviews will continue well into 2013.

When the OIG selects an office, it uses a computer program to randomly select 100 dates of service from the doctor's paid Medicare claims for the years 2010 through 2011. An OIG auditor will then come to your office and scan those selected records into its computers for later review at OIG offices.

You may think, "Well, that's not so bad." Wrong. If the OIG finds that you were overpaid, it will seek to recover that money and may even initiate further reviews. If it finds anything that looks like fraud, it will definitely initiate further reviews and may even come back to your office for a complete onsite audit. This involves bringing in a team of auditors and reviewing all of your Medicare records. This process can take several days and will totally disrupt your practice while it is happening.

Additionally, the OIG's sampling methodology is flawed. It is taking sample dates of service randomly. This means the majority of the sample dates will come from treatment visits during which you were carrying out the treatment plan developed during the initial visit or re-exam. This would be like looking at treatment notes developed after taking the seventh pill out of a 40-pill course of antibiotics. You just cannot develop a clear picture of the full benefit to the patient.

Action Steps to Take If the OIG Comes Calling

What should you do if you should be a fortunate winner in this OIG lottery? The first thing you should do is stop and think; don't panic. You need a plan and you need help. The first step is to shut up. Basic human nature is to explain how your situation is unique and that nothing is really wrong. Investigators love this. They learn more than they ever could through questioning. Many simple reviews have turned into full-blown audits because the doctor tried to explain their situation. (A note of warning here: The same thing can happen if you hire a consultant or attorney who has no experience dealing with the OIG.)

The next step is to call a consultant who understands the Medicare system and has experience working with the OIG. The consultant should refer you to an attorney who is licensed in your state and who specializes in Medicare regulatory issues. Hire the attorney, who will place the consultant under privilege. This is very important because it allows you to be completely open with the consultant and prevents the OIG from compelling testimony from the person you hired to protect you.

The consultant will come to your facility the day before the OIG is scheduled to be there. They should first meet with you and then with your staff to review what is happening and why it is happening. This is not something you are going to keep secret from your staff. Your staff should then start calling the patients who are scheduled for the day(s) that the OIG will be in your office. You do not want patients in your office while this review is taking place.

Select a single staff member to work with the consultant while the OIG is in your office; give the rest of your staff the time off. During this time, the consultant will be communicating directly with the OIG personnel involved with your review to determine when and how long they will want to talk to you face-to-face.

During the review, the consultant should get the names and dates of the requested files, and have the staff person retrieve those records. This prevents the OIG from having direct access to your files. The staff person should also copy each record requested by the OIG for use by the consultant and/or the attorney later.

When the time comes for the face-to-face conference, the consultant should be present and monitor the proceedings. If the discussion begins to go in a direction that could be harmful to you, the consultant should suggest that the conference be postponed until your attorney can be present, or that they submit further questions in written form.

The purpose of all of this is to take control of the situation and limit the uncontrolled exposure of yourself, your staff and your records to the OIG auditors. OIG personnel have been known to go to the homes of staff to interview them. You cannot tell your staff that they cannot talk to the OIG. That would be obstruction and could get you in trouble. However, you can tell your staff that they have the right to refuse to talk to OIG personnel. You staff also have the right to set the time and place of the interview, and to have their own lawyers present.

It may also be advisable to have the consultant do a "shadow review" of the records requested. This is where the consultant reviews the records the OIG copied in the harshest manner possible to determine what the worst case could be. This gives you valuable information for future negotiations should they demand a refund.

All of this may sound expensive, but consider that the OIG can issue fines of up to $10,000 per occurrence for fraud and abuse. Having a third party insulate you from the OIG can be very cheap insurance indeed. Some malpractice carriers will even cover some of that cost under certain circumstances.

You cannot refuse to cooperate with the OIG; that would get you in even more trouble and could easily result in a much more detailed audit. Having the OIG in your office is like having lunch with a bear. The chances are high that you will be the main course unless you take precautions to minimize the potential damage.

Dr. Ronald Short is a certified medical compliance specialist and a certified professional coder. He has authored numerous books on Medicare including The Medicare Documentation System. He also teaches seminars on Medicare, coding, billing, documentation and compliance. You can contact him at
chiromedicaregmail.com. More information about this and other Medicare topics is available at www.chiromedicare.net.

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